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tv   [untitled]    June 26, 2012 8:30pm-9:00pm EDT

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i want to showcase here, you have examples of a couple of fliers some have been mentioned. one here in texas, this does speak to the challenges that are faced telling people when to vote and telling them the wrong information. additionally, we have another flier here claiming to be from the virginia state board of elections. beurocrats must vote on november 5th and republicans and their supporters may vote on november 4th. once again, this is false and misleading information. this is not protected speech.
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throughout our leadership in election protection nonpartisan coalition. in fact, it was out of these efforts that we realized there was such a need. through our hotline which is l also a way in which we receive reports throughout the country, we have received calls of over a half a million people. this includes tactics that were received today. this recently, we have also going to be releasing a report a 2012 report on depceptive practices. in this report, we discussed insufficiencies of federal and
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state law. while we agree there is proper enforcement of voting rights, it can provide a deterent of many forms of intimidation, they are not always provfishient. however, this section is known as the anti-intimidation provision and not contain the penalty, only a few states have laws protecting voters from these types of practices. it is not clear what types of practices would be criminalized. in some because the laws do not address variations of the tactics, prosecutions are there for rare.
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this is why not only the private right of action but the corrective action component is important. this i mediate of corrective information as expressed in maryland. fal false and multiple registration and in short, this do not prove to be a true claim. of t often, it is not intentional. the community strongly supports the bill and we urge this committee to move forward to pass this law. as we come across our anniversary in 2013, we hope
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th that the legislation will protect the voting rights of all. time to act is now. we rurnurge this committee the deceptive practice voter intimidation act. >> thank you. every time i see my friend john louis, i cannot help but think it wasn't that long ago that congressman louis was a young man and nearly died because he wanted to exercise his right to vote. our next witness is john park, injury. he is counsel in atlanta and he specializes in government affairs and received his law degree at vail university.
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go ahead sir. your whole statement will be made part of the record. >> not because i condone the use of deceptive practices, voter intimidation or both. the first point i would like to make, is before congress creates new tools for private individuals to use, it should encourage the ones that are presently existing. those tools are generally under utilized and should be put to
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use before penalties are created. we are talk iing about regulati political speech which we know to be at the core of the first amendme amendment's protection. the bill under consideration mi chill statements on unsettled grounds of fact or law. it may chill the making of even truthful statements and it will do so within 90 days of an election. and that is both federal and state elections because they frequently coincide. during that time, anyone who wishes to speak will have to think about whether -- not simply whether what they are saying is truthful, but whether that statement could expose them to an action from the 0 posing
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party. what we know is coming on probably thursday, we are talking about false statements and the court in alvarez will impose penalties for statements that are untruthful. and we know we can't read anything into an oral argument, but it is going to be an interesting decision one way or the other. what you pro pose to do is give the department of justice and lawyers new tools. they put them to use frequently they put them to use trying to pound round pegs into square holes. when you talk about knowing, what do we understand knowing to be? do we know somebody knew it? we also think about whether they should have. we are going to back up to
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should have known, and somebody makes a statement that may not be -- that someone will deem reckless, is that knowing? is it a statement that is made neg legently. from intent knowledge and all of this has an obvious effect on the opposing campaign and parties. in my experience in alabama as i talked about it in my statement with the judicial inquiry commission, the canons that a government, the conduct of judicial candidates regulated their ability to make statements that were known to be false or with reckless disregard knowing
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that the information disseminated would be deceiving or misleading to a reasonable person. while there was no action, individuals would make complaints to the inquiry commission and impose on the candidate. they would require them to explain their statement and that happen ed in at least one campaign. finally, i vote that you are talking about 90 days before an election and that is a sensitive time and that should be heightened with concerns. with respect to under inclusion,
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i voted that the senate in 1994 doesn't address fraudulent registrations and i encourage the commit to address those. >> thank you, i noticed that in the 200, i want to put something out to the record, you said that part of your opposition is based on the bill which is under inclusive and you recognize fraud. of the same concerns raised in this committee in 2007. i note that the 2007 article raised that the crackdown on voter fraud they turned up no evidence of organized effort of voter fraud.
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and our next witness would be miss flanagan. mrs. flanagan is the director of voting and elections and part of that time she worked with the new york state legislature and has received her law degree. and as with all witnesses, your full statement will be made part of the record, please go ahead. >> thank you mr. chairman, senator for the opportunity to testify here today about the act. and how this bill provides a proactive means to guard against this most heinous form we are talking about today. to make their voices heard. the common cause has received
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numerous complaints over the years from colorado, to wisconsin, from ohio to pennsylvania. we have been responding to the kinds of intimidation and misleading acts that are being discussed here this morning. voter supression has become a household phrase in recent months. there is a gap between the rhetoric and the reality of voter fraud. what we are focused on today is a real threat. efforts to intimidate and deceive voters. the single right of all americans is to cast a ballot. it is disheartening that we are here to here to adress and change
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election outcomes. most americans are shocked and a appalled when they hear that these campaigns exist. i want to focus my few minutes here to talk about practices that have affected voters and how this bill will address those problems. the impact of spreading false force is very real. we do everything in our power to help them access the correct information so that they can vote. but we don't hear it from every affe affected voter. in colorado, on nof 3rd, 2008, on the eve of the presidential election. voters received robocalls telling them that their precinct
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had changed. they held a press conference on his front lawn. on election day, he was still inundated by calls. without other tools or corrective action, clerk ortiz took the slteps to make sure tht voter voters would be able to vote. calls were giving them false information. specifically, voters stated that if the calls said that if you signed the recall position you are down and you don't need to vote on tuesday. we issued statements, reached out to the media and called for mediate action and let voters
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know what their rights were and responsibilities in in order to participate in the election. many states do not have statutes to address practices. the prevention and redress should be addressed uniformly. as i told you about the colorado clerk mediate action and the wake of deceptive action must take place as soon as reports come in. it establishes the framework to do just that. after the election it is simply too late. once enacted, this bill will be stronger than existing state laws and the components requires the strong penalties and the corrective action and the true assessment of the problems that voters face with each and every
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election. with this action we can ensure that voters can enjoy the free exercise of elections. it often goes unaddressed and there for it is time to do something about it now. so that our elections can be of, by and for the people. i appreciate the opportunity to testify today and i look forward to the questions you may have. >> i appreciate you being here. and i'm going to direct this to mrs. house, the as i read the legislati
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legislation, i remember my parents when i was a child tell me to protect the first amendment, the right of free speech and the right to practice any religion you want and use it in america guaranteeing our democracy. so, you have had a lot of experience in this field. do you have a concern on this? >> we have put in place working with your offices language that would ensure that this is not
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indeed chilling political speech. it is narrowly tailored. and to show that a person has to prove that there is intent to provide misleading and false information and that they knowingly did so and that there is a timeline with this type of speech can be limited within that 90 day period before that election and also suring that there is a limitation on the type of speech. that is the way, the type of tayloring that is necessary to conform to the standards in order to ensure that the first amendment protections are
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provided. >> one of the things take a look at, is this necessary? and one of the arguments we are hearing against this is that there are plenty of remedies currently available. i take it you don't agree with that? >> you are right. the evidence doesn't bear that. we have documented as we have put position this report and kind of looking at the state laws that are currently in effect. i believe there are ten states or so that actually have the practice laws on the books. they are not very vigorous and not everyone is actually enforcing those laws in a way that is going to ensure that we are protecting people's rights when they have issues occurring in their state.
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maryland is an anomoly. we are happy there was enforcement and as it was indicated earlier, we need a uniform law, particularly in the federal level, to ensure that we do have this type of enforcement by the federal government and we are able to provide corrective action. >> i looked at some of the letters in spanish targeting california latino voters stating that it was a crime for immigrants to vote. i think my grandparents were immigrants from italy. i'm a very, very proud american sit zen. and i remember from being a little boy with the small home in vermont and watched them vote.
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this letter pointed out that naturalized citizens, like my parents and my grandparents or my wife's parents, can vote just as any of the rest of us. i mean, is this -- is this just one very rare example of intimidation? or do you have others? >> unfortunately, that's not a rare situation. we've experienced that in other states, as well. we've experienced those types of fliers. also, other things in arizona we've experienced things telling people that they'll be criminalized or have a traffic ticket. things like that. it is particularly discouraging to have these type of fliers occurring across the country. and particularly when we know that they're being targeted to certain demographic voters. as you mentioned, the slide that you spoke about was hard hit to immigrants.
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unless i know my history lesson wrong, everyone here is an immigrant unless they're american indian. or i may not be an immigrant because i was brought here as slooifs. but anyway, a very core value that we have in the democratic process which is the right to vote. >> my time has expired and i have a couple questions for you for the record which i gathered here, senator. >> thanks to all of the witnesses. mr. park, you have experience in private right of action litigation involving political candidates, most of the witnesses today see only very positive results that could come from private right of action suits under the bill. could you describe some of the negative effects of private
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right of action and practice and under the constitution against deceptive statements in the context of a political campaign? >> going back to my experience with the alabama judicial inquiry commission, one of the effects of bringing charges against a candidate who was then a judge was to disqualify that judge from further service. and the judicial inquiry commission brought charges against one of the candidates for chief justice in a campaign with respect to certain statements made in advertisements. and that affected the court's business and affected his ability to do his job. and, as it turned out, the cannons were substantially unconstitutional. the regulated speech that was within the scope of the first amendment.
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in moving to this bill, you're empowering people to file lawsuits to stop speech with which they disagree and that speech may or may not be knowingly false. but the lawsuit is available for them to do that. and that will have a chilling effect on them. it will give them a tool that they can use to knot up opposing campaigns. and i think for those reasons i think congress should hesitate before it creates this private right of action. >> your prepared testimony mentions that many of the practices in the bill seek to prohibit which are already violations of federal criminal law. one of the few that is not are endorsement provisions. can you outline how it has been offered to supposedly justify
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the law? >> there are several federal statutes, including one criminal statute, 18 u.s. code 241. there's section 11-b of the voting rights act which is civil. in new hampshire, the successful prosecution was brought under 18 u.s. code 241. and in maryland, i believe it was under state law. if the department of justice doesn't want to use existing remedies, it should explab why it hasn't used them to date. >> the bill would prohibit claims that a candidate or party has endorsed a candidate that it has not. could you explain first amendment problems with that prohibition?
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>> a claim that someone has endorsed a candidate is not always easy to determine whether that's, in fact, true. ensdorsmentdorsements are somet subtle. can you endorse bi-presence at a campaign event? and can you claim the support of someone with whom you have spoken privately. and the bill would give somebody a tool to file suit and say you are not, in fact, endorsed by that other pierson whose suppor you claim. and you're entitled to make truthful statements. and you would have to defend the truthfulness of the statement that you made. >> one of the witnesses, today, favors this bill because it affects only "unprotected speech" and would prohibit "the
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dispersal of arguable fraudulent speech." is arguable fraudulent speech, unprotected speech, under the first amendment? >> i don't think so. i don't think that -- one of the poen points that you can draw from the oral argument tript in alvarez is the court seems to disagree with the notion that there is no -- that the first amendment does not prohibit all statements that are false, much less statements that are arguably false. >> could you describe the unconstitutional chilling effect the enactment of this bill would create? >> in the 90-day period before an election, someone who wishes to speak about any of the subjects that are in the bill and, in that regard, there are things you can say that are truthful. some voters -- some people cannot vote. some non-citizens, in particular, are not entitled to vote.
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you have to consider whether your expression of opinion, your expression of -- with respect to an unsettled question or simple, truthful speech that with which an opponent may disagree could bring you a lawsuit and you have to weigh the value of that speech again. and you're making that speech against the possibility that you will be sued. and that chilling effect is one to which the supreme court has repeatedly pointed to in first amendment cases. >> thank you. i'm going to submit for the record support for the bill from the naacp, the national urban league, national buyer association leadership conference. prior to vote i have to go to the floor. i'm going to yield to senator whitehouse and then senator lee and senator schumer is coming to take over the gavel.
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but thank you all for being here. we'll chat more. >> thank you, chairman. i wonder if i could ask any of the witnesses to speak for a moment about the procedure known as voter caging and the history of that kind of activity and the extent to which this would be addressed. . >> you can go. start. >> ms. house? >> so, voter caging is another type of deceptive intimidation tactic that has also been occurring. >> can you describe it dpr the record of this hearing? >> absolutely. it is essentially kind of a term of art that is usually used in marketing.

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